The Supreme Court’s Coming Paralysis

Jeff Greenfield is an author and longtime network TV analyst. His latest book is "If Kennedy Lived."

...The Clarence Thomas nomination was the last time a Senate controlled by one party approved the nomination made by the President of another party.

This might be considered highly significant, except that the Thomas nomination was the last time a President of one party offered up a nomination to a Senate controlled by the other party. By a quirk of the calendar, Bill Clinton faced two vacancies that opened up in 1993, when Democrats had a 57-seat majority; in the six years after Democrats lost the Senate in 1994, there were none. George W. Bush’s two nominations came when his party had 55 seats; there were no vacancies after Democrats won the Senate in 2006. Obama named Sotomayor and Kagan when his party had a near-super majority 60 votes; there have been none since the 2010 midterms sharply reduced the Democratic edge.

And while no President since George H.W. Bush has had to offer a nomination to an opposition controlled Senate, all recent Presidents have had the benefit of virtual unity in their own parties. Only two Republicans voted against Clarence Thomas: Vermont’s Jim Jeffords, who would bolt the GOP a decade later, and Oregon’s Bob Packwood, whose own entanglement with sexual harassment charges would force him out of the Senate four years later.

Since then, whether nominations have succeeded overwhelmingly (Ginsburg, Breyer) or with substantial opposition (Alito, Sotomayor, Kagan), only one member of the President’s party has ever voted thumbs down. (It was Rhode Island’s Lincoln Chaffee, now the state’s independent governor, who voted against Samuel Alito’s confirmation).

This might suggest that the future of any prospective Obama nomination will turn on who winds up controlling the Senate; except, of course, it doesn’t. When Senate Majority Leader Harry Reid invoked the “nuclear option” last November, which ruled the filibuster out of order with respect to lower federal court judges, he explicitly exempted the Supreme Court. That, of course, only explains what a Senate minority can do. It’s the current political climate that tells us what Senate Republicans, whether in the majority or minority, are likely to do...